State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 107091 

107092

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MARCEL A. BIBEAU JR.,

Appellant.

________________________________

Calendar Date: May 23, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Marcy I. Flores, Warrensburg, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A.

Douthat of counsel), for respondent.

__________

Mulvey, J.

Appeals (1) from a judgment of the County Court of Clinton

County (McGill, J.), rendered May 14, 2014, convicting defendant

upon his plea of guilty of the crime of grand larceny in the

fourth degree (two counts), and (2) from an order of said court,

entered March 25, 2015, denying defendant's motion seeking

deferral of mandatory surcharges, fees and restitution. 

In 2013, defendant was the subject of three accusatory

instruments, the first of which charged him with the crime of

grand larceny in the third degree for having stolen from his

employer automotive and marine electronic equipment valued in

excess of $4,544.30 (see Penal Law § 155.30 [1]). The other two
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instruments charged defendant with the crimes of grand larceny in

the third degree and offering a false statement for filing in the

first degree in connection with defendant's receipt from the

Department of Social Services of over $3,000 in public assistance

benefits to which he was not entitled (see Penal Law §§ 155.30

[1]; 175.35 [1]). Defendant waived prosecution by indictment

and, in full satisfaction of the charges brought against him in

two separate superior court informations, pleaded guilty in March

2014 to two counts of grand larceny in the fourth degree. At

sentencing, defendant sought to have the payment of the mandatory

surcharges deferred until after he served his sentence. County

Court denied that request and, consistent with the terms of the

underlying plea agreement, sentenced defendant as an admitted

second felony offender to concurrent prison terms of 11⁄2 to 3

years and 2 to 4 years for each count of grand larceny in the

fourth degree and ordered restitution. Thereafter, defendant

filed a postjudgment motion again seeking to defer surcharges,

fees and restitution, and County Court, in a March 2015 order,

denied that request. Defendant now appeals from that order and

from the underlying judgment of conviction. 

We affirm. Initially, we note that defendant's failure to

move to withdraw his guilty plea or to vacate the judgment of

conviction renders his claims that his plea was involuntarily

entered and that his plea allocution was factually inadequate

unpreserved for our review (see People v Williams, 27 NY3d 212,

219-220 [2016]; People v Lopez, 71 NY2d 662, 665 [1988]; People v

Youngblood, 107 AD3d 1159, 1160 [2013], lv denied 21 NY3d 1078

[2013]; People v Bonville, 104 AD3d 1024, 1024 [2013], lv denied

22 NY3d 1197 [2014]). Moreover, the narrow exception to the

preservation rule does not apply here as defendant did not make

any statements during his plea allocution that cast doubt upon

his guilt or the voluntariness of his plea (see People v

Williams, 27 NY3d at 220; People v Lopez, 71 NY2d at 666-667). 

If this issue were properly before us, we would find that the

record establishes that, although defendant admitted his guilt

when asked for his plea to "the charge of grand larceny in the

third degree as set forth in the first count" alleging theft of

public assistance benefits, both the plea agreement and plea

colloquy unequivocally demonstrate that defendant agreed to plead
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guilty to grand larceny in the fourth degree. Moreover, at

sentencing, County Court confirmed that defendant was being

sentenced for his guilty pleas to two counts of grand larceny in

the fourth degree. The record further establishes that an

amended uniform sentence and commitment form was filed in July

2014 correctly indicating that defendant had pleaded guilty to

grand larceny in the fourth degree. 

With regard to defendant's contention that County Court

erred in denying his request to defer the payment of the

mandatory surcharges prior to imposing sentence, defendant did

not sufficiently demonstrate that the payment of the surcharge

"would work an unreasonable hardship on defendant over and above

the ordinary hardship suffered by other indigent inmates" (People

v Flanders, 110 AD3d 1112, 1112 [2013] [internal quotation marks

and citations omitted]; see CPL 420.40 [2]; People v LaRose, 120

AD3d 1442, 1443 [2014], lv denied 24 NY3d 1045 [2014]). 

Inasmuch as defendant requests deferral of the payment of

restitution, neither CPL 420.40 nor the issuance of a civil

judgment expressly permit deferral of the payment of restitution

(see CPL 420.40 [1]; 420.10 [6]; but see People v Greenhalgh, 48

Misc 3d 755, 758-759 [County Ct, Nassau County 2015]; People v

Morrison, 36 Misc 3d 880, 888 & n 3 [Sup Ct, NY County 2012]). 

Nor has defendant demonstrated that County Court abused its

discretion in denying defendant's request to defer payment of the

restitution component of his sentence (see CPL 420.10 [1] [a];

Penal Law § 60.27 [3]; People v Merchant, 79 AD3d 1526, 1526

[2010]; see generally People v Henry, 64 AD3d 804, 807 & n 2

[2009], lv denied 13 NY3d 860 [2009]). 

Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur.
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107092 

ORDERED that the judgment and order are affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court